Manipulate the System: How to “Fix” the Supreme Court

Clark Neily is a senior attorney at the Institute for Justice, where he specializes in constitutional litigation on behalf of economic liberty, property rights, free speech, and school choice. In his private capacity, he served as co-counsel for the plaintiffs in the landmark Second Amendment case District of Columbia v. Heller, where the Supreme Court held that the Constitution secures an individual right to keep and bear arms, not a collective one.

Reason: One of the biggest complaints about the Supreme Court is that the justices are engaging in judicial activism. But you write, “We don’t have an activist judiciary. Not remotely.” What leads you to say that?

Clark Neily: First of all, if you’re characterizing a certain decision as “activist” you’re essentially saying “this is clearly contrary to either statutory law or the Constitution.” So it’s not just an erroneous decision but a decision that is so obviously erroneous that it could only have been the product of a bad-faith effort to privilege the judge’s policy preferences and put them above that of the actual written law. There are very few Supreme Court decisions striking down laws that in my judgment are indisputably erroneous.

Second, just look at the total output of law from legislatures and then compare the number of times the Supreme Court has struck down laws. It just doesn’t add up. I mention in the book that former Senator Arlen Specter on his way out of the Senate in 2010 complained that the Supreme Court “is eating Congress’ lunch with judicial activism.” But when you actually look at the numbers, of the more than 15,000 laws that Congress passed between 1954 and 2002, the Supreme Court struck down just 103—that’s two-thirds of 1 percent. That’s barely sweeping up the crumbs, it’s not eating anybody’s lunch.

Reason: So the real problem is that the courts have been too passive?

Neily: The courts, starting with the Supreme Court and trickling down, have essentially talked themselves into a kind of knee-jerk deference to the legislature, where in many cases they’re not really making any serious effort to determine whether the government’s action is in fact constitutional. Instead, they’re starting with what amounts to a predetermined belief that the government’s action must be upheld, and their job is to sort of reason backwards from there. I try to document in the book the particular mechanism by which that happens in various areas of constitutional law, including the rational-basis test that applies to supposedly non-fundamental rights and non-invidious discrimination. The rational-basis test is nothing of the kind. It’s not a test and it’s not rational. It’s all about rationalizing what the government’s doing.

Reason: What’s the origin of the idea that there are fundamental rights that deserve serious judicial protection, and non-fundamental rights that get judged under the rational-basis test?

Neily: That arises out of a famous Supreme Court case called Carolene Products from 1938.Carolene Products contains the most famous footnote in Supreme Court history, Footnote Four, in which the Supreme Court asserts the idea that some rights are fundamental and entitled to meaningful judicial protection, and those are basically the rights contained in the Bill of Rights, and perhaps one or two others; and then every other right you might think of—and that includes everything from the right to earn a living to the right to seek…